Free Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ___________________________________ )

THE AK-CHIN INDIAN COMMUNITY,

Case No. 06-09321 (ECH) Judge Emily C. Hewitt Electronically filed on August 28, 2007

PLAINTIFF'S BRIEF IN RESPONSE TO DEFENDANT'S MOTION TO DISMISS

KEITH HARPER D.C. Bar No. 451956 E-mail: [email protected] G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail: [email protected] KILPATRICK STOCKTON LLP 607 14th Street, N.W. Washington, D.C. 20005 Phone: (202) 508-5800 Attorneys for Plaintiff The Ak-Chin Indian Community

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TABLE OF CONTENTS Page(s) I. INTRODUCTION .................................................................................................................... 1

II. STATEMENT OF THE CASE................................................................................................. 3 A. B. Plaintiff-Beneficiary Filed this Action Prior to Filing an Action In The District Court. ........................................................................................................................... 3 The CFC Complaint And District Court Complaint Allege Different Claims Involving Different Operative Facts And Different Relief.......................................... 8

III. ARGUMENT.......................................................................................................................... 10 A. This Court's Jurisdiction Is Established At The Time The Suit Is Filed And A LaterFiled District Court Action Does Not Divest This Court Of Jurisdiction. ................ 10 1. 2. B. As this Court held in Breneman, same-day filings are not treated as simultaneous for the purposes of § 1500. ....................................................... 10 No suit or process was pending against the United States at the time this Court obtained jurisdiction over Plaintiff-Beneficiary's claims. .............................. 14

Dismissal Under 28 U.S.C. § 1500 Is Improper Unless The CFC And District Court Complaints Present the Same Claims That Both Arise From The "Same Operative Facts" And Seek The "Same Relief." ........................................................................ 17 1. Plaintiff-Beneficiary's claim in the District Court for an equitable accounting arises from a different breach of trust and different operative facts from its claims in the CFC for mismanagement of Plaintiff-Beneficiary's trust property. .......................................................................................................... 19 a. b. c. 2. "Operative facts" under 28 U.S.C. § 1500 do not include background facts. .......................................................................................................... 19 The District Court and CFC Complaints do not present the same operative facts. .......................................................................................................... 21 The government's argument misunderstands the law and mischaracterizes the Complaints. ......................................................................................... 22 Plaintiff-Beneficiary seeks different relief in the District Court than it does in the CFC ­ equitable relief in the former and money damages in the latter ­ in accord with each Court's jurisdiction. ............................................................ 24

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a. b. c.

Section 1500 does not apply where the pending Complaints seek different relief. ......................................................................................................... 24 Plaintiff-Beneficiary does not seek the same relief in the two cases. ....... 26 The government's arguments to the contrary are without merit. ............. 30

IV. CONCLUSION....................................................................................................................... 40

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TABLE OF AUTHORITIES Page(s) Cases Alaska Airlines, Inc. v. Johnson, 8 F.3d 791 (Fed. Cir. 1993) ...................................................................................................... 33 Bowen v. Massachusetts, 487 U.S. 879 (1988).............................................................................................................. 3, 33 Branch v. United States, 29 Fed. Cl. 606 (1993) ........................................................................................................ 20, 21 Breneman v. United States, 57 Fed. Cl. 571 (Fed. Cl. 2003), aff'd, 97 Fed. Appx. (Fed. Cir. 2004) ................. 10, 11, 12, 13 Casman v. United States, 135 Ct. Cl. 647 (1956) .............................................................................................................. 24 Cherokee Nation v. United States, 21 Cl. Ct. 565 (1990) ................................................................................................................ 26 Cobell v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1998).............................................................................................. 34 Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999)................................................................................................ 35 Cobell v. Norton¸ 240 F.3d 1081 (D.C. Cir. 2001)......................................................................................... passim Cooke v. United States, 77 Fed. Cl. 173 (2007) ................................................................................................ 2, 3, 20, 31 Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir. 1995).................................................................................................... 34 d'Abrera v. United States, No. 06-427C, 07-365C, 2007 WL 2332142 (Fed. Cl. Aug. 15, 2007) ................... 10, 11, 13, 20 Fire-Trol Holdings, LLC v. United States, 65 Fed. Cl. 32 (2005) .......................................................................................................... 17, 20 Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002).................................................................................................................. 35

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Harbuck v. United States, 378 F.3d 1324 (Fed. Cir. 2004) .......................................................................................... 13, 30 Hardwick Bros. Co. II v. United States, 72 F.3d 883 (Fed. Cir. 1995) ...................................................................................................... 1 Heritage Minerals, Inc. v. United States, 71 Fed. Cl. 710 (2006) .............................................................................................................. 20 Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed. Cir. 1988) .................................................................................... 17, 18, 24 Keene Corp. v. United States, 508 U.S. 200 (1993)................................................................................................ 17, 18, 24, 30 Kidwell v. Dep't of the Army, 56 F.3d 279 (D.C. Cir. 1995).............................................................................................. 28, 30 Klamath & Modoc Tribes & Yahooskin Bank of Snake Indians v. United States, 174 Ct. Cl. 483 (1966) .............................................................................................................. 25 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949).................................................................................................................. 33 Loveladies Harbor v. United States, 27 F.3d 1545 (Fed. Cir. 1994) ........................................................................................... passim Lucas v. United States, 25 Cl. Ct. 298 (1992) ................................................................................................................ 21 Manke Lumber Co. v. United States, 44 Fed. Cl. 219 (1999) ........................................................................................................ 17, 18 Osage Nation v. United States, 57 Fed. Cl. 392 (2003) .............................................................................................................. 25 Osage Tribe of Indians of Okla. v. United States, No. 04-0283, 2005 WL 578171 (D.D.C. Mar. 9, 2005) ........................................................... 35 OSI, Inc. v. United States, 73 Fed. Cl. 39 (2006) ................................................................................................................ 31 Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968).................................................................................................................. 29 Porter v. Warner Holding Co., 328 U.S. 395 (1946).................................................................................................................. 34

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Rainbolt v. Johnson, 669 F.2d 767 (D.C. Cir. 1981).................................................................................................. 34 Reich v. Cont'l Cas. Co., 33 F.3d 754 (7th Cir. 1994) ...................................................................................................... 35 Sec. Exch. Comm'n v. First City Fin. Corp., 890 F.2d 1215 (D.C. Cir. 1989)................................................................................................ 34 Stone v. Immigration and Naturalization Serv., 514 U.S. 386 (1995).................................................................................................................. 13 Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965) ...................................................................................................... 12 Teegarden v. United States, 42 Fed. Cl. 252 (1998) .............................................................................................................. 10 Tootle v. Sec'y of the Navy, 446 F.3d 167 (D.C. Cir. 2006).................................................................................................. 28 Turkett v. United States, 76 F. Supp. 769 (D.N.Y. 1948)................................................................................................. 16 U.S. v. County of Cook, 170 F.3d 1084 (Fed. Cir. 1999) .......................................................................................... 11, 13 United States v. Minor, 228 F.3d 352 (4th Cir. 2000) .................................................................................................... 33 United States v. Mitchell, 463 U.S. 206 (1983)........................................................................................................ 9, 25, 36 Wanamaker v. Columbian Rope Co., 713 F. Supp. 533 (N.D.N.Y. 1989)........................................................................................... 16 Williams v. United States, 71 Fed. Cl. 194 (2006) .............................................................................................................. 20 Statutes 25 U.S.C. § 4011(a) (2000)........................................................................................................... 27 25 U.S.C. § 4022........................................................................................................................... 29 28 U.S.C. § 1500.................................................................................................................... passim 28 U.S.C. § 1631..................................................................................................................... 11, 13

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Other Authorities 1 Dan R. Dobbs, Law of Remedies § 4.1(2) (2d ed. 1993) ........................................................... 34 2A A. Scott & W. Fratcher, The Law of Trusts § 172 (4th ed. 1987)........................................... 27 6 Bogert, The Law of Trusts & Trustees, § 963 ...................................................................... 27, 28 Abandoned Property Collection Act, ch. 120, 12 Stat. 820 (1863) .............................................. 18 D. Dobbs, Handbook on the Law of Remedies 135 (1973)........................................................... 33 G. Bogert, et al., The Law of Trusts & Trustees § 963 (2d ed. 2006)........................................... 27 G. Bogert, The Law of Trusts & Trustees § 962 ........................................................................... 34 Restatement (Second) of Agency § 399 (1958) ............................................................................. 27 Rules 25 C.F.R. § 162.616 ...................................................................................................................... 29 25 C.F.R. § 162.619 ...................................................................................................................... 29 RCFC 12(b)(1) ................................................................................................................................ 1

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I.

INTRODUCTION This is an action for money damages against the United States, brought to redress gross breaches of trust by the United States as trustee of land, natural resources, and other assets held for the benefit of the Ak-Chin Indian Community ("Plaintiff-Beneficiary"). The government has moved to dismiss the action for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) and 28 U.S.C. § 1500 on the ground that Plaintiff-Beneficiary's separate action for an equitable accounting pending in the United States District Court for the District of Columbia is the same claim that it seeks to vindicate here. It is well-settled, however, that jurisdiction is established at the time of filing and under § 1500, a later-filed district court action does not divest the Court of Federal Claims of jurisdiction that was earlier properly established. See Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886 (Fed. Cir. 1995). Plaintiff-Beneficiary is able to demonstrate through the testimony of the person who filed each action, and supporting evidence, that its action in the District Court was not pending at the time Plaintiff-Beneficiary filed this action. This timing issue is dispositive of this Court's jurisdiction. See id. Moreover, as the Federal Circuit has made clear, "to be precluded from hearing a claim under § 1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief." Loveladies Harbor v. United States, 27 F.3d 1545, 1551 (Fed. Cir. 1994) (en banc) (emphases in original). Both requirements must be satisfied, and here neither is met. First, Plaintiff-Beneficiary's claim in the District Court arises from different operative facts involving the breach of a different trust duty from its claims in this Court. In the District Court, Plaintiff-Beneficiary seeks to compel the government to provide a complete, accurate, and 1
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adequate accounting of all of the property it holds in trust for the benefit of Plaintiff-Beneficiary. The operative facts necessary to establish the breach of that trust obligation include decades of inaction on the part of the United States in the fulfillment of this core duty and the government's failure to maintain adequate records of these trust assets so that Plaintiff-Beneficiary can ascertain the true state of its assets. In this Court, by contrast, Plaintiff-Beneficiary will prove distinct breaches of trust in the management of Plaintiff-Beneficiary's trust funds and nonmonetary trust assets. The operative facts include, for example, loss of investment funds as a result of the United States' breach of its fiduciary duty to maximize trust income by prudent investment and the failure of the United States to obtain fair and reasonable compensation for the use of Plaintiff-Beneficiary's land and other non-monetary assets. To be sure, certain

background facts will overlap because the breaches of duty to be proved in both courts arise from the trust relationship between the United States and Plaintiff-Beneficiary, but an overlap in such background facts does not render the two claims the "same" for purposes of § 1500. See, e.g., Cooke v. United States, 77 Fed. Cl. 173, 177-78 (2007). Thus, the facts material to the claims in the two courts are not the same. In addition, § 1500 does not apply for the independent reason that Plaintiff-Beneficiary does not seek the same relief in both courts. Simply put, it seeks strictly equitable relief in the District Court and money damages here. In the District Court, Plaintiff-Beneficiary asks for the equitable remedies available in that court for the breach of a duty to account ­ an order directing the government to provide that accounting and other appropriate equitable relief, including restatement of Plaintiff-Beneficiary's accounts to reflect the results of that accounting. It does not, however, request money damages to compensate Plaintiff-Beneficiary for losses resulting from imprudent investment or mismanagement of Plaintiff-Beneficiary's trust assets. The latter form of relief is only requested (and is only available) in this Court. 2
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In particular, contrary to the government's position, the restitution and disgorgement sought in the District Court do not overlap with the money damages requested in this Court. It is well-settled that equitable restitution is not the same as money damages and that in any event, § 1500 does not apply when two claims seek different measures and amounts of monetary relief. See, e.g., Bowen v. Massachusetts, 487 U.S. 879, 893 (1988); Cooke, 77 Fed. Cl. at 178. The government also contends Plaintiff-Beneficiary seeks overlapping declaratory relief, but this argument rests both on a misreading of the Prayer for Relief in this Court and the allegations in the District Court Complaint and on the erroneous legal premise that a liability determination is a form of relief. Accordingly, § 1500 is not a bar to Plaintiff-Beneficiary's claims because it did not have a claim pending in the District Court at the time it filed this action and, in any event, PlaintiffBeneficiary's claim in the District Court neither arises from the same operative facts nor involves the same relief it seeks here. For these reasons, the government's motion to dismiss should be denied. II. STATEMENT OF THE CASE A. Plaintiff-Beneficiary Filed this Action Prior to Filing an Action In The District Court.

On December 29, 2006, Plaintiff-Beneficiary filed two different complaints ­ one in this Court against the United States ("CFC Complaint") and later, one in the District Court for the District of Columbia (the "District Court Complaint") ­ against the Secretaries of the Interior and the Treasury and the Special Trustee for American Indians. See District Ct. Complaint, attached as Ex. 1 to Def.'s Brf. Ms. Applegate, a paralegal at Kilpatrick Stockton LLP, filed both the CFC Complaint and the District Court Complaint.

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Ms. Applegate filed seven Complaints that day. (Plaintiff's Responses and Objections to Defendant's First Set of Interrogatories ("Response to Interrogatories"), Response No. 11, attached hereto as Exhibit A.) In addition to this action, Ms. Applegate filed Complaints in the United States Court of Federal Claims styled Passamaquoddy Tribe v. United States, No. 06942L; Salt River Pima-Maricopa Indian Community v. United States, No. 06-943L; and Tohono O'odham Nation v. United States, 06-944L (collectively, the "Court of Federal Claims Actions"). (Id.) Ms. Applegate also filed Complaints in the District Court initiating the actions styled Passamaquoddy Tribe of Maine v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02240-JR, Salt River Pima-Maricopa Indian Community v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02241-JR and Ak-Chin Indian Community v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv02245-JR (collectively, the "District Court Actions"). (Id.) Ms. Applegate recalls that on December 29, 2006, she walked from Kilpatrick Stockton's office to the Court of Federal Claims to file this action and handed the clerk the requisite number of copies of the Complaint, as well as a civil cover sheet and a check for the accompanying filing fees. (Response to Interrogatories, Response No. 2.) Ms. Applegate walked back to the office with a file-stamped copy of the Complaint. (Id.) Later that same day, to file Plaintiff-Beneficiary's District Court Complaint, Ms. Applegate took a cab to the District Court. (Response to Interrogatories, Response No. 2.)1 The intake clerk at the District Court who handled the filing of complaints told Ms. Applegate that she was too busy to process Plaintiff-Beneficiary's District Court Complaint while Ms.
1

Ms. Applegate made three trips to the District Court on December 29, 2006. Each of the cab receipts from these trips has distinct handwritten notations, "A.M." "Ak-Chin" and "second trip." None of the cab receipts indicate the timing of Ms. Applegate's trips to and from the District Court. (AKCHIN00030-32, attached hereto collectively as Exhibit B.) 4
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Applegate waited. (Id.) The intake clerk then instructed Ms. Applegate to leave PlaintiffBeneficiary's District Court Complaint and accompanying materials with her and told Ms. Applegate that she would call Ms. Applegate when she was ready for Ms. Applegate to return to the District Court to complete the filing and retrieve the summons. (Id.) Ms. Applegate took a cab back to Kilpatrick Stockton's office to wait for the intake clerk at the District Court to call her. (Id.) At 12:41 p.m., after Ms. Applegate had returned to the office, Ms. Applegate sent G. William Austin, an attorney at Kilpatrick Stockton LLP, an e-mail explaining that all the Complaints had been filed, but she was waiting for the summons. (Response to Interrogatories, Response Nos. 7 and 8; AKCHIN00217, attached hereto as Exhibit C.) Because Ms. Applegate neither needed nor ever received a summons in connection with filing the CFC Complaint, this e-mail evidences that Ms. Applegate had filed PlaintiffBeneficiary's CFC Complaint by 12:41 p.m.2 Although Ms. Applegate candidly does not remember whether the clerk called or if Ms. Applegate decided on her own to go back to the District Court, Ms. Applegate thereafter took a cab from the office back to the District Court to complete the filing of the Plaintiff-Beneficiary's District Court Complaint. (Response to Interrogatories, Response No. 2.) It was on this trip to the District Court that Ms. Applegate retrieved the file-stamped copy of the District Court Complaint and other materials, including the summons, from the intake clerk and brought those materials and a check to the District Court's cashier. (Id.) Ms. Applegate submitted a check to the cashier, received a receipt, and took a cab back to the office with a file-stamped copy of the Complaint, an executed summons, and a receipt. (Id.) At 2:23 p.m., after Ms. Applegate
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Under the RCFC 4, Plaintiff-Beneficiary was not required to effectuate service of the CFC Complaint on the United States. See RCFC 4 ("Service of the complaint upon the United States shall be made through the delivery by the clerk to the Attorney General . . . of copies of the complaint . . . the date of service shall be date of filing with the clerk."). 5
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returned to the office, she sent Mr. Austin an e-mail stating that she had just returned from the Court and was completing her time sheet before she left for the day. (Response to

Interrogatories, Response Nos. 7 and 8; AKCHIN00217.) Ms. Applegate thus completed the filing of the District Court Complaint between 12:41 p.m. and 2:41 p.m. (Response to Interrogatories, Response Nos. 9 and 10.) Ms. Applegate further recalls that on December 29, 2006, the last trip she made to a court in connection with filing a complaint was to the District Court and specifically remembers giving a security guard at the District Court a "high-five" when she had completed all of the filings that day. (Response to Interrogatories, Response No. 11.) Because the District Court assigned Plaintiff-Beneficiary's District Court Action the highest civil action number of all of the District Court Actions Ms. Applegate filed that day, and the District Court assigns civil action numbers based upon the time that the Complaints are filed in the Court, Ms. Applegate is certain that Plaintiff-Beneficiary's District Court Complaint was the last Complaint she filed on December 29. (Id.; Affidavit of Alexis Applegate, at ¶ 5, attached hereto as Exhibit D). In addition, Keith Harper, an attorney at Kilpatrick Stockton LLP and counsel of record for Plaintiff-Beneficiary, recalls that he orally instructed Ms. Applegate to file the Complaints initiating the Court of Federal Claims Actions at the earliest possible time on December 29, 2006, and prior to filing the Complaints initiating the District Court Actions. (Response to Interrogatories, Response No. 11.)3 Because Mr. Harper and Ms. Applegate had successfully filed a Complaint in the action styled Tohono O'odham Nation v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02236-JR in the District Court the previous day on December 28, 2006, and Mr. Harper practiced more regularly in the District Court, Mr.
3

Mr. Harper did not give the instruction to file the Court of Federal Claims Actions prior to filing the District Court Actions out of a concern for issues related to 28 U.S.C. § 1500. (Id.) 6
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Harper was comfortable that he and Ms. Applegate understood the necessary procedures to perfect the filing of a Complaint in the District Court. (Id.; Complaint in Tohono O'odham Nation v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02236JR, attached hereto as Exhibit E). Mr. Harper and Ms. Applegate had not yet filed any

Complaints initiating actions in the Court of Federal Claims, however, and Mr. Harper was not as familiar with the filing procedures in this Court. (Response to Interrogatories, Response No. 11.) Therefore, Mr. Harper instructed Ms. Applegate that she should file the Complaints

initiating the Court of Federal Claims Actions as early as possible and before filing the Complaints she was planning to file in the District Court that day so that Mr. Harper and Ms. Applegate would have sufficient time to cure any potential problems occurring in connection with filing the Complaints in the Court of Federal Claims Actions. (Id.) Mr. Harper remembers giving this instruction even though he had earlier sent to Ms. Applegate an e-mail at 8:59 a.m. on December 29, 2006, telling her that she would have to file the Complaints in the District Court Actions while he made changes to the Complaints in the Court of Federal Claims Actions. (Id.) In light of the impending New Years holiday on Monday, late in the evening of Thursday, December 28, 2006, Mr. Harper had asked Ms. Applegate to call the District Court and the Court of Federal Claims to determine if either of the Courts was closing early on Friday, December 29, 2006. (Id.; AKCHIN00042, attached hereto as Exhibit F.) Mr. Harper recalls that on the morning of December 29, 2006, likely after he sent Ms. Applegate the 8:59 a.m. e-mail, Ms. Applegate was unable to confirm that the Court of Federal Claims was not closing early that day. (Response to Interrogatories, Response No. 11.) This additional uncertainty prompted Mr. Harper to instruct Ms. Applegate to file the Court of Federal Claims Actions before filing the District Court Actions. Id. Ms. Applegate recalls Mr. Harper's concern and is certain that she followed Mr. Harper's instructions and filed Plaintiff7
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Beneficiary's CFC Complaint prior to filing its District Court Complaint. (Id.; Affidavit of Alexis Applegate, at ¶ 5). B. The CFC Complaint And District Court Complaint Allege Different Claims Involving Different Operative Facts And Different Relief.

Although both the CFC Complaint and District Court Complaint arise from the trust relationship between Plaintiff-Beneficiary and the United States and the failure of the United States to fulfill various trust obligations, the two complaints allege different claims that involve different operatives facts relating to different breaches of trust and that seek different relief. The District Court Complaint invokes the equitable jurisdiction of the District Court to request a complete, accurate, and adequate accounting of all property held in trust by the United States for Plaintiff-Beneficiary's benefit. See District Ct. Compl. ¶ 1; Cobell v. Norton¸ 240 F.3d 1081, 1103 (D.C. Cir. 2001) (Cobell VI) (the accounting obligation requires, inter alia, an accounting report that "contain[s] sufficient information for [Plaintiff-Beneficiary] readily to ascertain whether the trust has been faithfully carried out.") (citation omitted). The United States' repeated breaches of its fiduciary obligations with respect to Indian trust assets, now widely recognized by the courts and the Congress, make an accounting necessary to ascertain the true state of Plaintiff-Beneficiary's trust assets. (District Ct. Compl. ¶ 21.) In Count One of the District Court Complaint, Plaintiff-Beneficiary requests a declaration (1) that the United States and its trustee-delegates owe a fiduciary duty to provide a complete and accurate accounting of all funds and assets, and (2) that the defendants are in violation of their duty. (Id. at ¶¶ 33-39; Prayer ¶¶ 1-4.) In Count Two of the District Court Complaint, PlaintiffBeneficiary requests injunctive relief directing the defendants to provide such an accounting and to comply with their other fiduciary duties as determined by that Court. (Id. at ¶¶ 41-42; Prayer ¶ 5.) Further, to the extent that the accounting demonstrates errors in the account balances 8
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(whether positive or negative), Plaintiff-Beneficiary seeks a decree directing the restatement and correction of Plaintiff-Beneficiary's trust account balances to reflect the results of the accounting. (Id. at ¶¶ 1, 43; Prayer ¶ 6.) Finally, the accounting may well reveal that other equitable relief is appropriate to compel the government to comply with its trust obligations in the present or in the future. (Id. at ¶ 43-44; Prayer ¶¶ 5-6.) The equitable relief Plaintiff-Beneficiary seeks in the District Court is designed to address the government's trust obligations to account for Plaintiff-Beneficiary's trust assets, but it cannot remedy the past breaches of duty prudently to invest money held in trust funds or to obtain the highest and best use for Plaintiff-Beneficiary's land or other trust assets. Establishing the breach of those latter duties involves different operative facts and leads to only one remedy: money damages. Therefore, on December 29, 2006, Plaintiff-Beneficiary filed a Complaint for money damages in this Court to redress specific breaches of statutory, regulatory, and fiduciary duties in the management of Plaintiff-Beneficiary's trust funds and non-monetary trust assets. These duties, as the Supreme Court has recognized, are "money-mandating" and their breach may be remedied by an award of money damages in the Court of Federal Claims. See United States v. Mitchell, 463 U.S. 206, 228 (1983) (Mitchell II). The CFC Complaint alleges three distinct breach-of-trust claims for mismanagement of different tribal funds and assets. Specifically, Count I alleges mismanagement of PlaintiffBeneficiary's land and natural resources for failure to obtain "fair and reasonable compensation" for the lease of these resources. (CFC Compl. ¶¶ 24-29.) Count II alleges mismanagement and failure prudently to invest the principal and earnings of other funds held in trust for PlaintiffBeneficiary, including proceeds from leases, permits, easements, and rights-of-way; and general tribal funds. (Id. at ¶¶ 31-34.) Count III alleges mismanagement and failure prudently to invest 9
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the principal and earnings of judgment funds held in trust for Plaintiff-Beneficiary. (Id. at ¶¶ 3539.) For all three counts, the only relief requested, and the only relief adequate to redress the trust breaches, is an award of money damages. (Prayer ¶¶ 1-4). III. ARGUMENT A. This Court's Jurisdiction Is Established At The Time The Suit Is Filed And A Later-Filed District Court Action Does Not Divest This Court Of Jurisdiction.

Section 1500 of Title 28 provides that the Court of Federal Claims shall not have jurisdiction "of any claim for or in respect to which the plaintiff ... has pending in any other court any suit ... against the United States." 28 U.S.C. § 1500. The Federal Circuit has made clear that jurisdiction is established at the time the suit is filed. Hardwick, 72 F.2d at 886. Thus, to determine whether § 1500 applies, this Court must first examine whether Plaintiff-Beneficiary, when it filed its Complaint in this Court, had pending in any other court any suit against the United States. See id.; Breneman v. United States, 57 Fed. Cl. 571, 575 (2003), aff'd, 97 Fed. Appx. (Fed. Cir. 2004) (Hewitt, J.). This "timing issue is dispositive of this court's jurisdiction." Id. (citing Hardwick, 72 F.2d at 886; Teegarden v. United States, 42 Fed. Cl. 252, 255 (1998)). Accordingly, if Plaintiff-Beneficiary's District Court Action was not pending at the time it filed its CFC complaint in this Court, the government's motion to dismiss should be denied on this ground alone. See d'Abrera v. United States, Nos. 06-427C, 07-365C, 2007 WL 2332142, at *4 & n.9 (Fed. Cl. Aug. 15, 2007). 1. As this Court held in Breneman, same-day filings are not treated as simultaneous for the purposes of § 1500.

In support of its motion to dismiss, the government first argues that PlaintiffBeneficiary's December 29, 2006 filings in this Court and the District Court should be treated as simultaneous for the purposes of § 1500 simply because they were filed on the same day and 10
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regardless of which Complaint Plaintiff-Beneficiary in fact filed first. The government bases this argument on theories that this Court explicitly rejected in Breneman. See also d'Abrera, 2007 WL 2332142 at *5. Indeed, the government cites no legal authority that supports (let alone adopts) its position.4 In Breneman, as here, the plaintiffs had filed suit in the Court of Federal Claims and the District Court on the same day within several hours of each other and were able to demonstrate that the District Court action was not pending at the time plaintiffs filed their complaint in the Court of Federal Claims. 57 Fed. Cl. at 574 n. 9. The government moved to dismiss based on 28 U.S.C. § 1500, arguing that because the plaintiffs filed the complaints on the same day, the two complaints should be treated as having been filed simultaneously for purposes of the Court's jurisdiction under § 1500. Id. at 575. In making this argument, the government relied upon United States v. County of Cook, 170 F.3d 1084 (Fed. Cir. 1999), a case in which a district court had transferred some of plaintiff's claims to the Court of Federal Claims for lack of jurisdiction pursuant to 28 U.S.C. § 1631 but had retained other claims. Breneman, 57 Fed. Cl. at 577. In County of Cook, the Federal Circuit held "that the `filing' of the same claim simultaneously in the district court and the Court of Federal Claims by operation of § 1631 deprives the latter court of jurisdiction pursuant to § 1500." County of Cook, 170 F.3d at 1091 (emphasis supplied). In Breneman, this Court rejected the application of County of Cook to the different situation in which CFC and District Court complaints were sequentially filed on the same day and no transfer under § 1631 was involved. As the Court explained, § 1631 at issue in County of Cook mandates that transferred claims be treated as if they were filed in the transferee court at the time they were filed in the transferor court. Breneman, 57 Fed. Cl. at 577 (citing to County
4

Because this Court's recent decision in Breneman is controlling, Plaintiff-Beneficiary will not in this brief burden the Court with all of the arguments that it would present if the matter were res nova in this case. 11

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of Cook, 170 F.3d at 190). Thus, unlike a same-day filing, the transferred claims "were truly filed `simultaneously.'" Id. County of Cook therefore had no application in Breneman. This Court then addressed the factual question of the order in which the two complaints actually were filed. Examining the plaintiffs' evidence regarding the filing of the complaints, the Court found that the CFC complaint was filed before the District Court complaint and thus "there was not pending in any other court any suit or process against the United States" for purposes of § 1500. Breneman, 57 Fed. Cl. at 577. Accordingly, plaintiffs' later filing of a District Court action did not deprive this Court of jurisdiction. Id. (citing Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965)); see also Hardwick, 72 F.2d at 886. Because this ruling was dispositive under § 1500, the Court noted that it did not need to address whether the claims in both courts were the same for purposes of that statute. Breneman, 57 Fed. Cl. at 577 n. 11. In Breneman, this Court also considered and rejected both of the policy considerations the government reiterates here to justify expanding the reach of § 1500 beyond its terms. First, the government argues that treating same-day filings as simultaneous under § 1500 serves the purpose of § 1500 to make a plaintiff elect in which forum to proceed and properly focuses the § 1500 inquiry on whether the claims are the same. (Def. Brf. p. 9.) Second, making same-day filings simultaneous for purposes § 1500 "makes sense" to the government because it asserts that federal courts record filings only by date but not by time and thus determining the order in which the complaints actually were filed "unnecessarily complicates" the Court's jurisdictional inquiry. (Def. Brf. p. 9.)5 In rejecting these same arguments in Breneman, this Court relied upon the Federal Circuit's explicit holding in Hardwick that jurisdiction is established at the time of filing
5

This argument ignores that district courts outside the District of Columbia, such as the District Court involved in Breneman, record filing of complaints by time. See Breneman, 57 Fed. Cl. at 577 (citing to the time-stamp on the civil cover sheet from the complaint filed in the District Court for the District of Massachusetts showing the time that the complaint had been filed). 12

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suit and a later-filed district court action does not divest the Court of Federal Claims of jurisdiction that was earlier properly established, irrespective of whether the claims are the same under § 1500. Breneman, 57 Fed. Cl. at 576 (citing Hardwick, 72 F.3d at 885-86).6 Moreover, the jurisdictional provision in § 1500 must, as the Federal Circuit has instructed, be strictly construed to avoid unnecessarily depriving litigants of the opportunity to vindicate all of their claims beyond what Congress expressly provided. Loveladies, 27 F.3d at 1555-56. Policy considerations, such as the ones the government identifies here, should not expand or contract § 1500's terms "to reflect policy preferences that may or may not have led to [its] enactment." d'Abrera, 2007 WL 2332142 at *5; see also Stone v. Immigration and

Naturalization Serv., 514 U.S. 386, 405 (1995) (jurisdictional statutes "must be construed with strict fidelity to their terms"). Lastly, the government relies heavily upon Harbuck v. United States, 378 F.3d 1324 (Fed. Cir. 2004), to support its position that same-day filings be treated as simultaneous. However, Harbuck, like County of Cook, involved the transfer of claims from the district court and turned on the application of § 1631. In Breneman, this Court soundly rejected the

application of 28 U.S.C. § 1631 ­ which renders filings "truly simultaneous" ­ to same-day filings. Breneman, 57 Fed. Cl. at 577 (citing County of Cook, 170 F.3d at 190). In the end, the government forthrightly concedes that it simply disagrees with this Court's ruling in Breneman. That, however, is no reason for the Court to depart from its prior decision, and the government presents no other reason. Accordingly, Breneman governs this case.
6

The government asserts that eliminating this Court's jurisdiction over same-day filings is desirable on the ground that plaintiffs would no longer be able to "orchestrate the timing of their complaints." (Def. Brf. p. 10.) The government acknowledges, however, that a plaintiff can avoid § 1500 simply by filing a CFC Complaint one day prior to filing a district court action ­ an avenue which would continue to be available to a plaintiff under the government's approach. (Def. Brf. n. 3.) As such, extending § 1500 to same-day filings would not end "orchestrated filings" as the government suggests. See d'Abrera, 2007 WL 2332142 at *4 n. 9. 13

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2.

No suit or process was pending against the United States at the time this Court obtained jurisdiction over Plaintiff-Beneficiary's claims.

Because, under Breneman, Plaintiff-Beneficiary had not in fact filed its District Court Complaint at the time of the filing of its CFC Complaint in this Court, § 1500 is inapplicable and does not divest the Court of jurisdiction. The most compelling evidence demonstrating that no other suit or process was pending when this Court obtained jurisdiction over Plaintiff-Beneficiary's claims is the testimony of Alexis Applegate, the paralegal responsible for filing Plaintiff-Beneficiary's CFC and District Court Complaints. Ms. Applegate testified that she "is certain" that Plaintiff-Beneficiary's District Court Complaint was the last of the seven Complaints she filed that day. (Alexis Applegate Affidavit, at ¶ 5.) This certainty is due, in part, to her recollection that she gave a security guard at the District Court a "high five" after she had completed her last filing that day. (Response to Interrogatories, Response Nos. 11.) As both parties acknowledge, the District Court assigns civil action numbers based upon the order of filing. Because the District Court assigned Plaintiff-Beneficiary's District Court action the highest civil action number of the three District Court Complaints Ms. Applegate filed that day, Plaintiff-Beneficiary's District Court Complaint is the last one she filed on December 29, 2006. This clearly establishes that PlaintiffBeneficiary's District Court action was not pending at the time Ms. Applegate filed PlaintiffBeneficiary's CFC Complaint. Ms. Applegate's testimony is consistent with documentary evidence generated by the filings. For example, Ms. Applegate sent Mr. Austin an e-mail at 12:41 p.m., telling Mr. Austin that all the Complaints had been filed but that she was waiting for the summons. (Response to Interrogatories, Response Nos. 7 and 8; AKCHIN00217). Because Ms. Applegate had no need

14
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to, and did not, obtain a summons in connection with filing the CFC Complaint, this e-mail establishes that Plaintiff-Beneficiary's CFC Complaint had been filed as of 12:41 p.m. Ms. Applegate also recalls that she had to make a return trip to the District Court to complete the filing of Plaintiff-Beneficiary's District Court Complaint and to obtain the summons. After having done so, Ms. Applegate sent Mr. Austin an e-mail at 2:23 p.m. to tell him that she had just returned from the Court. (Response to Interrogatories, Response Nos. 7 and 8; AKCHIN00217.) This e-mail evidences that Plaintiff-Beneficiary's District Court

Complaint was filed between 12:41 p.m. and 2:23 p.m. ­ after Ms. Applegate filed PlaintiffBeneficiary's CFC Complaint. Without contesting this evidence, the government asserts that Plaintiff-Beneficiary had to have filed the District Court action in the morning rather than in the afternoon and thus it likely was prior to the filing of the CFC Complaint. To make this argument, the government relies upon the fact that Ms. Applegate filed two other complaints in the District Court that were the first two actions filed on December 29, 2006. The government also contends that cab receipts show that Ms. Applegate traveled to the District Court in the morning to file PlaintiffBeneficiary's Complaint. As evidenced by the multiple cab receipts, however, Ms. Applegate made three trips to the District Court on December 29, 2006. (AKCHIN00030-32.) Because Ms. Applegate did not complete the filing of Plaintiff-Beneficiary's District Court Complaint until after 12:41 p.m., the one receipt with the "A.M." notation is not the receipt documenting her trip to the District Court to complete her filing of Plaintiff-Beneficiary's District Court Complaint, but relates to one of the trips to file the two other District Court actions she filed earlier that day.7
7

The government attaches significance to Justin Guilder's 11:41 a.m. e-mail showing that the CFC Complaint had not been filed at that time. (Def. Brf. p. 11.) Because Ms. Applegate's e15
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The government also argues that the intake clerk filed Plaintiff-Beneficiary's District Court Complaint before Ms. Applegate made her final trip to the District Court. Yet it was during this last visit that Ms. Applegate paid the requisite filing fee and received both a receipt for having paid the fee and a file-stamped copy of the District Court Complaint. (Response to Interrogatories, Response No. 2.) Therefore, Plaintiff-Beneficiary's District Court Complaint was not deemed filed until Ms. Applegate's last trip to the District Court, which occurred after she filed the CFC Complaint. See, e.g., Turkett v. United States, 76 F. Supp. 769, 770 (D.N.Y. 1948) (holding that a prerequisite to a filing is the payment of the clerk's fees); Wanamaker v. Columbian Rope Co., 713 F. Supp. 533, 539 (N.D.N.Y. 1989) (holding that plaintiff's complaint was filed only after payment of the filing fee to the clerk of the court). Lastly, the government argues that Mr. Harper's e-mail to Ms. Applegate, sent early in the morning on December 29, 2006 and telling her to file the District Court Complaints while he made changes to the Court of Federal Claims Complaint, is dispositive of the timing issue. This point is at most a minor discrepancy and in any event has been fully explained in PlaintiffBeneficiary's sworn Responses to Plaintiff's Interrogatories. After Mr. Harper sent the early morning e-mail, Ms. Applegate was unable to confirm whether the Court of Federal Claims would be closing early that day. (Response to Interrogatories, Response No. 11.) This

uncertainty prompted Mr. Harper to orally direct Ms. Applegate to file the Court of Federal Claims actions prior to filing the District Court actions. (Id.) Ms. Applegate is certain that she followed these instructions. (Id.; Alexis Applegate Affidavit, at ¶ 5.)

mails to Mr. Austin demonstrate that Ms. Applegate had filed the CFC Complaint by 12:41 p.m., Mr. Guilder's e-mail is noteworthy only because it demonstrates that Ms. Applegate filed the CFC Complaint between 11:41 a.m. and 12:41 p.m. ­ before she filed the District Court Complaint. 16
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For these reasons, the government's arguments do not controvert Plaintiff-Beneficiary's showing that the District Court action was not pending at the time Plaintiff-Beneficiary filed the CFC Complaint. By itself, this requires denial of the government's motion to dismiss under § 1500, and therefore the Court need not consider whether the two complaints involve the same claim. But, as discussed below, the government's motion also should be denied on that further ground as well. B. Dismissal Under 28 U.S.C. § 1500 Is Improper Unless The CFC And District Court Complaints Present the Same Claims That Both Arise From The "Same Operative Facts" And Seek The "Same Relief."

The purpose of § 1500 is to "prohibit the filing and prosecution of the same claims against the United States in two courts at the same time." Johns-Manville Corp. v. United States, 855 F.2d 1556, 1562 (Fed. Cir. 1988) (emphasis added). Since the Federal Circuit's en banc decision in Loveladies, it has been well-settled that the two actions do not present the "same claim" unless they both (1) arise from the same operative facts and (2) seek the same relief. See Loveladies, 27 F.3d at 1551 ("For the Court of Federal Claims to be precluded from hearing a claim under § 1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief" (emphasis in original)).8 "If either is missing, § 1500 does not
8

The government tries to dilute the standard in Loveladies, although the distinction does not ultimately matter here because Plaintiff-Beneficiary prevails under either standard. The government argues it is sufficient for dismissal if the operative facts in the two complaints are "substantially the same." (Def. Brf. p. 7.) (emphasis added). For this point, the government cites the Supreme Court's decision in Keene Corp. v. United States, 508 U.S. 200, 212-214 (1993). In Keene, the Supreme Court, interpreting the predecessor to § 1500, said that the comparison of two suits turned upon whether the plaintiff's other suit was based on "substantially the same operative facts." Id. at 201. As this Court observed in Manke Lumber, however, the Federal Circuit in Loveladies has since worded the applicable standard under § 1500 differently, requiring the "same operative facts." See 44 Fed. Cl. at 222 ("The Supreme Court in Keene used different phraseology to discuss dismissal under § 1500 than that employed by the Federal Circuit in Loveladies."). And this court is "governed by the Federal Circuit's explication of Keene [in Loveladies] which developed it into a two prong test." Fire-Trol Holdings, LLC v. United States, 65 Fed. Cl. 32, 34 (2005). 17
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apply."

Manke Lumber Co. v. United States, 44 Fed. Cl. 219, 222 (1999).

Here, both

requirements are missing and, therefore, dismissal under 28 U.S.C. § 1500 is improper. In interpreting § 1500 the Federal Circuit has warned that the jurisdictional bar must be construed narrowly and to guarantee that litigants have an opportunity to vindicate all of their claims rather than being forced to forgo some claims in favor of others. In Loveladies, the Federal Circuit stated: Because this nation relies in significant degree on litigation to control the excesses to which Government may from time to time be prone, it would not be sound policy to force plaintiffs to forego monetary claims in order to challenge the validity of Government action, or to preclude challenges to the validity of Government action in order to protect a Constitutional claim for compensation. 27 F.3d at 1555-56. As the en banc court noted, "Section 1500 was enacted to preclude duplicate [claims in the aftermath of the Civil War for private property (usually cotton) confiscated from residents of the Confederacy] ­ claims for money damages ­ at a time when res judicata principles did not provide the Government with protection against such `duplicative lawsuits.'" Id. at 1556 (emphasis deleted) (quoting Keene, 508 U.S. at 206).9 Recognizing that § 1500 has long outlived the narrow purpose for which it was enacted, the en banc court cautioned that "[w]hatever viability remains in § 1500, absent a clear expression of Congressional intent we ought not extend the statute to allow the Government to foreclose non-duplicative suits, and to deny remedies the Constitution and statutes otherwise provide." Id.10
9

The Supreme Court in Keene described the history of this statute, which has "long outlived" the duplicative claims it was designed to prevent. See 508 U.S. at 206; see also Johns-Manville Corp., 855 F.2d at 1569 (summarizing legislative history). As described there, some of those with property confiscated during the Civil War brought statutory claims against the United States in the Court of Claims for compensation under the Abandoned Property Collection Act, ch. 120, 12 Stat. 820 (1863), as well as suits against their local treasury officials on various tort theories of recovery, that were removed to federal district court. Keene, 508 U.S. at 206. Section 1500 was enacted to curb these duplicative suits and to prevent a claimant's second bite at the apple. 10 Transparently, the government is following a two-step strategy to dismiss the present action under § 1500 and then to challenge the District Court's jurisdiction in the other action ­ thereby 18
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Applying this principle here, § 1500 should not be extended to foreclose PlaintiffBeneficiary's statutory right to money damages arising from breaches of money-mandating duties merely because it also seeks in the District Court the separate relief of an equitable accounting based upon different operative facts and involving different trust duties. 1. Plaintiff-Beneficiary's claim in the District Court for an equitable accounting arises from a different breach of trust and different operative facts from its claims in the CFC for mismanagement of Plaintiff-Beneficiary's trust property.

Plaintiff-Beneficiary's claim for a complete and adequate accounting of its trust assets and other equitable relief in the District Court arises from the government's failure over more than a century ever to comply with its trust duty to provide an accounting for all assets held in trust for Plaintiff-Beneficiary. That case seeks to compel the government to comply with a different trust duty, and therefore naturally is based upon different operative facts, than PlaintiffBeneficiary's claims in this Court for money damages for past mismanagement. a. "Operative facts" under 28 U.S.C. § 1500 do not include background facts.

As the en banc court recognized in Loveladies, "operative facts" do not include every fact alleged in a complaint, but instead require some link between the facts and the elements of the claim to be proved: Despite its lineage, it can be argued that there is a basic epistemological difficulty with the notion of legally operative facts independent of a legal theory. Insofar as a fact is `operative' ­ i.e., relevant to a judicially imposed remedy ­ it is necessarily associated with an underlying legal theory, that is, the cause of action. For example, without legal underpinning, words in a contract are no different from casual correspondence. 27 F.3d at 1551 n.17. Because it was not critical to the decision in that case, the Federal Circuit concluded it was unnecessary to "further refine the meaning of `operative facts.'" Id. leaving Plaintiff-Beneficiary with no recourse for Defendants' egregious and longstanding breaches of trust. (Def. Brf. p. 18 n. 6.) 19
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As this Court has repeatedly recognized, "[c]laims involving the same general factual circumstances, but distinct material facts can fail to trigger section 1500." Heritage Minerals, Inc. v. United States, 71 Fed. Cl. 710, 716 (2006) (quoting Branch v. United States, 29 Fed. Cl. 606, 609 (1993)). "[W]hile claims `may be supported by some common operative facts,' § 1500 is not implicated where `the material facts supporting each claim [are] characterized as largely dissimilar.'" Id. Thus, the "fact that two claims share the same factual background is

insufficient to divest this Court of jurisdiction when there is a material difference between the operative facts relevant to each claim." Cooke, 77 Fed. Cl. at 178; see also Fire-Trol, 65 Fed. Cl. at 34 (facts that are "merely background" are "not operative facts directly giving rise to the claims pled"). Under this legal standard, this Court has repeatedly and consistently concluded that claims involving similar background facts, but different operative facts, did not implicate § 1500's bar. See, e.g., d'Abrera, 2007 WL 2332142, at *7 (Lanham Act claim and copyright claim did not arise from the same operative facts despite shared general factual background); Cooke, 77 Fed. Cl. at 177-787 (Equal Pay Act claim in district court did not involve same operative facts as retaliation claim in Court of Federal Claims despite that claims shared the same factual background); Fire-Trol, 65 Fed. Cl. at 34-35 (agreeing with plaintiff's characterization of facts relevant to an understanding of the wild land fire retardant market as "merely background"); Heritage Minerals, 71 Fed. Cl. at 715 (operative facts underlying district court action for contamination of groundwater did not arise from same operative facts as takings claim arising from subsequent installation of wells to monitor contamination of groundwater); Williams v. United States, 71 Fed. Cl. 194, 199-200 (2006) (even though "[m]any of the factual allegations ... match[ed]," collateral attack on court martial proceeding in district court arose from different operative facts than claim for accrued leave denied as a result of his dishonorable 20
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discharge and correction of his military record); Branch, 29 Fed. Cl. at 608; Lucas v. United States, 25 Cl. Ct. 298, 305 (1992) (breach of contract claims were supported by some common facts but material facts supporting claims arising from separate contracts were different). Plaintiff-Beneficiary's claims in this Court and the District Court involve different operative facts. b. The District Court and CFC Complaints do not present the same operative facts.

The government contends that both complaints are based upon "essentially identical factual allegations" that the United States "as trustee, breached fiduciary duties owed to Plaintiff by allegedly failing to properly manage Tribal trust funds and assets." (Def. Brf. p. 13.) That is not correct. Of course, there are similarities between the two complaints. But that is neither surprising nor legally germane: In each case, it is the trust relationship between the United States as trustee and Plaintiff-Beneficiary that is at the center of Plaintiff-Beneficiary's claims and gives rise to the duties assertedly violated. But what is legally controlling is that the duties specifically at issue in each case, and the facts underlying the breaches of those duties, are different. Fundamentally, the principal duty Plaintiff-Beneficiary seeks to enforce in the District Court is the government's obligation to provide a complete, accurate, and adequate accounting of all property held in trust by the United States for Plaintiff-Beneficiary's benefit ­ an obligation the United States, as trustee, has not fulfilled since the inception of the trust more than a century ago. (District Ct. Compl. ¶¶ 34-39, 41-42; Prayer ¶¶ 1-3, 5.) The facts supporting the breach of the accounting obligation ­ decades of inaction on the part of the trustee-delegates with respect to fulfillment of this core duty ­ are different from the facts to be established in support of the

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distinct breach-of-trust claims alleging fund and asset mismanagement in the case filed in this Court. For example, assume arguendo (and in the government's favor) that the trustee-delegates in the accounting sought in the District Court action are able to account faithfully for every transaction related to Plaintiff-Beneficiary's judgment funds and other trust funds. PlaintiffBeneficiary would nonetheless be entitled to substantial money damages in this Court (Counts II and III ) if the government's records, although accurate, reflect a failure to deposit or invest those same funds "with the care, skill, and caution that a prudent investor would exercise under the circumstances." (CFC Compl. ¶¶ 36-39) (breach in management of judgment funds). The facts presented in support of these claims would be different from the facts presented to support the equitable accounting claim in the District Court. Similarly, Count I of the CFC Complaint refers to the United States' failure to obtain "fair and reasonable compensation" for the benefit of Plaintiff-Beneficiary in leasing PlaintiffBeneficiary's land and natural resources. (CFC Compl. ¶¶ 25-29.) Even assuming that the Government has accurately maintained records of and accounted for this trust property, PlaintiffBeneficiary still would have a claim for this separate breach of trust, and evidence of the United States' failure to obtain fair and reasonable compensation for the use of this land will require proof of different operative facts than the facts required in support of a general accounting. c. The government's argument misunderstands the law and mischaracterizes the Complaints.

In support of its contention that the facts underlying these allegations are likely to be substantially similar in both cases, the United States points to background facts presented in both Complaints that describe the trust relationship between Plaintiff-Beneficiary and the United States, and the persistent and egregious pattern of the United States' failures to comply with its 22
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trust obligations. (Def. Brf. p. 13-17.) Although a full and accurate picture of this trust relationship is an important backdrop for the claims in both courts, the specific duties PlaintiffBeneficiary seeks to vindicate in each court, and the facts supporting the breaches of those duties, are different. As explained above, the common facts asserted by the government are legally insufficient to dismiss the complaint under § 1500. Furthermore, the government mischaracterizes the factual allegations on the face of the Complaints. For example, the United States contends that Plaintiff-Beneficiary challenges the adequacy of the compensation it received for leases and permits for interests in its natural resources not only in its claims for damages in this Court but also in the District Court. (Def. Brf. p. 15-16; compare CFC Compl. ¶¶ 24-29 (Count I), with District Ct. Compl. ¶¶ 1-4, 13, 2021.) Plaintiff-Beneficiary's claim in the District Court, however, does not turn on specific failures to maximize the productivity of its trust property or to use it for its highest and best use. (District Ct. Compl. ¶¶ 20(f)-21). Such breaches are the focus of the Court of Federal Claims Complaint and can only be remedied here where money damages are available. Accordingly, these allegations are simply relevant background for Plaintiff-Beneficiary's demand for a full accounting in the District Court because these repeated breaches make clear the need for the government to account for all of Plaintiff-Beneficiary's trust assets. Furthermore, without such an accounting, it is possible other breaches would go unnoticed. (Id. at ¶ 21.) ("Due to these and other breaches of the fiduciary duties owed by the United States, the Community does not know, and has no way of ascertaining, the true state of its trust assets"). In sum, the operative facts necessary to the claims filed in this court for money damages are different than the facts needed to complete and present the equitable accounting claim in the District C